The bad news is that administrators may legally ask to see stories before they are printed or aired, but prior review leaves them in an awkward situation, because of the good news below.

The good news is that they generally cannot ask students to change anything or spike the story. That would be prior restraint, allowed legally only under narrow conditions.*

Prior Review is a bad idea for both students and the school. But how do you convince the administrations?

You have two strong arguments against prior review. The first is a legal argument, the second is a pedagogical one.

First, when administrators review student publications prior to publishing, they and the school district become responsible for its content and policies. These three cases show the protection schools enjoy when they allow student control of student media:

Because Lexington High School students made all the editorial, business and staffing decisions for both the LHS Yearbook and the school paper, a suit brought against the district failed. The adults were sued because the student leaders of the paper had refused to run two ads. The school’s superintendent, principal, the two publication advisers and the five school members of the school committee escaped unharmed from the suit that alleged they were violating the First and Fourteenth amendments when the school publications refused the ads. (Yeo v. Town of Lexington (1997) in the First Circuit Court of Appeals)

Because the students, not the school district, decided which senior portraits to allow in the Londonderry High School yearbook, the district was protected from successful suit for First Amendment violation when the students rejected a senior portrait with a shotgun. The judge found that it was not the school district that rejected the photo. It was the student yearbook editors. “The state has not, it seems, suppressed Blake’s speech. His fellow students have done so.” (Douglass v. Londonderry School District (2005) in the U.S. District Court for New Hampshire.)

Because the students of Roosevelt High School in Seattle practiced strong journalism and controlled the content of their student media, a lower court ruled in favor of the Seattle Public Schools and against slumlords suing the district for libel following an article in The Roosevelt News, “Sisley Slums Cause Controversy: Developers and neighborhood clash over land use.” The lower court ruled that if what the students write is true, it is not libel, and where the students make the content decisions, the school district is protected from successful suit. (Sisley v. Seattle School District (2011 in the Court of Appeals of Washington (state), Division 1)

Second, when administrators exercise prior review, students lose the opportunity to develop skill crucial to democracy, including the ability to recognize sound journalism and fake news. When students choose the content of their publications to please—or at least “get past”—administrators, they are denied the opportunity to apply what they learn in class about news values, ethics and press law.

In contrast, students who control the content of their publication regularly consider their audience’s right to know and individuals’ right to privacy. They judge the strength and reliability of sources. They strive to make their reporting fair and accurate. They come to cherish their audience’s trust and they admit mistakes, issue corrections and retractions, and live with the consequences. They are prepared to be responsible citizens as intelligent consumers of media.

There is no evidence that prior review by administration improves learning in any way.

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*In states under the Tinker standard, an administrator could restrain stories that pose a clear and present danger of inciting students to commit crimes on school premises or violate lawful school regulations, or substantially disrupt the orderly operation of the school. The administrator could also restrain stories that contain obscenity or slander/libel.

In the states that remain under Hazelwood, the administrator would need a “legitimate pedagogical concern.”

Resources:

QuickHits So what does Hazelwood actually allow administrators to do?

QuickHits The Perks of Being a Wallflower: How a School District Escaped a Lawsuit by Fostering an Independent Student Press. Yeo v. Town of Lexington (1997) in the First Circuit Court of Appeals

Quickhits More Perks of Being a Wallflower: How two other School District Escaped Lawsuits by Fostering an Independent Student Press. Douglass v. Londonderry School District (2005) and Sisley v. Seattle School District (2011)

Quick Tips: Student First Amendment RightsYeo v. Town of Lexington (1997) in the First Circuit Court of Appeals

by Jan Ewell
Because Lexington High School students made all the editorial, business and staffing decisions for both the LHS Yearbook and the school paper, a suit against the district failed. The school’s superintendent, principal, the two publication advisers and the five school members of the school committee escaped unharmed from the suit that alleged they were violating the First and Fourteenth amendments when the school publications refused two ads.

In 1992 the Lexington School Committee in Lexington, Massachusetts debated making condoms available to students without parental permission. The Musket, the Lexington High School newspaper, ran news articles and editorials on the debate.

Douglas Yeo, a parent and the leaders of a group opposing the condom-distribution policy, complained to the school’s principal about the Musket’s coverage, saying it did not accurately reflect his group’s position. The principal acted in accord with Massachusetts’s law, which gives editorial control to the students under the Tinker standard. He directed Yeo to the student editors of the paper, saying they would make any decisions regarding corrections. He suggested Yeo write a letter to the editor. Yeo did not contact the student paper.

In March of 1993 the voters of Lexington approved the condom distribution policy. In November Yeo and his group submitted a $200 check and a full page ad to the yearbook. The ad read, “ABSTINENCE: The Healthy Choice. Sponsored by: Lexington Parents Information Network (LEXNET)” followed by a post office box number.

In an editorial meeting considered the ad, the student editors of the yearbook decided it was out of context with their publication; most of their ads congratulated graduates. Some came from family, others from local businesses used by students. The Yearbook had an unwritten policy not to publish political advocacy ads.

Through their adviser (this was before cell phones) they asked Yeo to rewrite the ad to reflect the usual patterns. Yeo refused and threatened to sue the yearbook unless his ad was published as submitted. The students discussed the ad again and decided to stand by their original decision. Yeo apparently felt the students were censoring him and faxed in response, “based on our understanding of the right of equal access and free speech, we do not accept your rejection of our ad and ask that you reconsider your decision to censor it.”

In January of 1994 Yeo submitted the same ad to the Musket, the student run newspaper, with an added line reading, “For accurate information on abstinence, safer sex and condoms, contact. . .” The student editors met and decided to reject the ad. Though a number of students at the meeting supported Yeo’s pro-abstinence views, they did not want the Musket to turn into a bulletin board for advocacy on lifestyle issues. Additionally, they were uncomfortably with having to run an ad because someone had threated to sue them.

They wrote Yeo saying that if they had accepted his ad, they “would feel obligated to accept other political statements that might come our way. We do not wish to put ourselves in such position. Ultimately Ad space is not a public forum and for that reason the Musket reserves the right to select what Advertisements it chooses to print.”

Yeo threatened the town and school authorities with legal action. Though the administration wished to avoid lawsuits, they continued to support the students’ control of the content of their publication. This proved fortunate for them because the only forms of government (including schools and the teachers as government employees) are restrained by the First Amendment. If the school, that is, the government, had decided whether to run the ad, they may indeed have violated Yeo’s rights.

The students suggested that Yeo write a letter to the editor; the Letter to the Editor section was a public forum. Yeo refused and insisted his ad be run as submitted, “as is our legal right.” He concluded, “You don’t have to agree with it. You don’t even have to like. You just have to print it. Touché. ”

Yeo did sue the superintendent, the principal, the advisers of the yearbook and newspaper, and the Lexington school committee, claiming that they were denying his First Amendment right to free speech and his Fourteenth Amendment right to due process. He did not name the publication or the students, who in fact were the ones who rejected his ad, but as private entities and as citizens the students and their publication could not violate his First or Fourteenth amendment rights.

Ultimately the U. S. Court of Appeals for the First Circuit ruled against Yeo. Student journalists do have the right to refuse ads. They are not government agents. Since only the government is in a position to violate the First Amendment or the Fourteenth, there was no suppression of Yeo’s rights.

Furthermore, the court ruled that the school district was not responsible for the students’ decisions. “As a matter of law, we see no legal duty here on the part of school administrators to control the content of the editorial judgments of student editors of publications.”

Under Massachusetts law, the students control the content of the student publications. At Lexington High School, the policy and practice had been for the students to make editorial and business decisions. School officials were not responsible for those decisions, and so there were no First or Fourteenth amendment violations.

The district was protected from judgment in the suit because the students controlled the student media.

And yes, both publications changed their unwritten policy concerning political advocacy ads into clear written policies.

Note: This is not a Supreme Court Case. In May of 1998 the Supreme Court refused to hear the case, letting the First Circuit Court’s decision stand. It is the law in only the First Circuit, that is Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island, but it has been cited as a persuasive precedent in similar case.